Andhra HC (Pre-Telangana)
Pinipe Mallamma And Ors. vs Kunche Chinna Mangamma And Ors. on 19 September, 2001
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER
1. Both these Revision Petitions can be disposed of by a common order.
2. Revision Petition 1076 of 2000 is directed against the order in I.A.No. 1049 of 1998 in O.S.No. 108 of 1986 dated 3-12-1999 on the file of the Additional Senior Civil Judge, Rajahmundry wherein the learned Judge dismissed the petition filed under Section 152 C.P.C to amend item No.2 of plaint schedule by substituting R.S.No. 583/2 in the place of R.S.No. 583/6.
3. Revision petition 1541 of 2000 is directed against the order in I.A.No. 670 of 1998 in O.S.No. 108 of 1986 on the file of the Additional Senior Civil Judge, Rajahmundry wherein the learned Judge dismissed the petition filed under Section 151 C.P.C to amend item No.2 of petition schedule by substituting R.S.No. 583/2 in the place of R.S.No. 583/6.
4. Petitioners are the plaintiffs and the respondents are the defendants. Plaintiffs filed a suit in O.S.No. 108 of 1986 against the defendants for cancellation of two settlement deeds dated 16-8-1984 and 16-8-1984 purported to have been executed by late Kollapu Veerayya in favour of the defendants and for partition of the plaint schedule property. Plaint 'A' schedule consists of items 1 and 2. Item No.1 of plaint 'A' schedule is situated at Palacherla village in R.S.No. 583/2 of an extent of six acres whereas Item No.2 of plaint 'A' schedule is situated at Palacherla village in R.S.No. 583/2 in an extent of Ac. 1-14 cents and in R.S.No. 583/6 in an extent of Ac. 1-15 cents. The said suit was decreed on 17-9-1996. Against the said judgement and decree, the defendants preferred an appeal A.S. 1490 of 1997 to this Court and this Court granted interim stay of passing of final decree and later the stay was made absolute. Thereafter, the plaintiffs filed an application in I.A.No. 668 of 1997 in the lower court for partition of the property in terms of preliminary decree. At the time of inspection of the property by the Commissioner, the plaintiffs noticed that there is a mistake in mentioning the correct survey numbers in respect of item No.2 of plaint schedule. According to the plaintiffs, the correct survey number is R.S.No. 583/2 and the same is mentioned by mistake as R.S.No. 583/6 in item No.2 of plaint schedule. The plaintiffs therefore submitted that they may be permitted to amend the plaint in so far as item No.2 of plaint schedule by substituting R.S.No. 583/2 instead of R.S.No. 583/6.
5. After hearing the arguments advanced on behalf of the parties, the trial Court found that though the mistake in description of survey number appears to be a bona fide one, but it refused to interfere with the matter on the ground that the appeal is pending in this Court and therefore directed the petitioners to work out their remedies for amendment of the plaint with regard to the description of correct survey numbers before appropriate forum. Aggrieved by the said common order, the petitioners are before this Court contending that court below having found that the mistake in giving the survey numbers as 583/6 instead if 583/2, should have allowed the amendment and it is also contended that the amendment petition is maintainable even though an appeal against the preliminary decree is pending in the High Court and that the lower court has not properly appreciated the provisions of Section 152 and 153-A of C.P.C and also the decisions cited before it and particularly the one .
6. Mr. M.S.K. Sastri learned counsel for the petitioners submitted that thought an appeal is pending before this Court, it is not a bar to exercise the jurisdiction conferred on the lower court under Section 152 C.P.C to correct the plaint and the decree when the lower court found that the mistake is a bona fide one committed by the petitioners in giving the correct survey numbers. It is further submitted that unless the judgement and decree passed by the Court is merged with the order of the appellate Court, the trial Court is empowered to amend the plaint and decree.
7. In order to appreciate the contentions of the learned counsel for the petitioners, I have gone through the provisions of law in respect of Sections 152 of the Code. Section 152 of the Code reads as under:
152. Amendment of judgments, decree or orders:- Clerical or arithmetical mistakes in judgements, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
8. I have also gone through Section 153 A of the Code, which reads as under:
153 A: Power to amend decree or order where appeal is summarily dismissed:- Where and appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.
9. This contingency does not arise in the facts and circumstances of the case because the appeal is pending. Therefore Section 152 C.P.C is applicable to the facts and circumstances of the case. Under Section 152 of the Code, the Court may correct clerical or arithmetical mistakes in judgements, decrees or orders or errors arising therein from any accidental slip or omission at any time either of its own motion or on the application of any of the parties. Mere pendency of appeal does not preclude the trial court to amend the decree or judgement, if the trial court has come to a conclusion that it is a bona fide mistake. So long as the appeal is not disposed of the order of the trial court is not merged in the appellate order. The Supreme Court in L. Janaki Rama Iyer v. P.M. Nilakanta Iyer has considered Sections 151 and 152 CPC. The Supreme Court held that the High Court has jurisdiction under Section 151 and 152 CPC to make correction, after appeals by Supreme Court had been admitted, of the decree or order drawn in the High Court as a result of inadvertence. It is further observed that through error re-introduced the words mesne profits instead of words net profits, the error can be corrected by the High Court under Section 151 and 152 CPC even though the appeals from the decree may have been admitted in the Supreme Court before the date of correction even though the objection was taken by the respondents that the amendment was made after the appeals to the Supreme Court had been admitted and that it is without jurisdiction.
10. In Narkulla Venkayya v. Noona Satyanarayana the Division Bench of this Court considering Section 152 CPC held as under:
"............that a mistake was committed by the plaintiff in entering the correct acreage of S.No. 526 and also in relation to S.No. 529 which was incorrectly entered as S.No. 524. That it was due to sheer inadvertence as evident from the description given in the gift deed relied on by the defendants themselves. Admittedly, the deceased was not in possession of S.No. 524 nor was the acreage of S.No. 526 more than 33 1/2 guntas."
11. Ultimately, this Court held as follows:
"The trial Court could not rectify such mistakes in the judgement or decree which has been superseded by the appellate Court's decree or has merged into the same. The Counsel for the petitioner realised this mistake and has filed a petition to this Court for correcting the error as the appeal is pending before us. We have given opportunity to the other party to file counter and heard his counsel in that behalf. The respondents no doubt oppose the petition but there can be no doubt that the mistake that has crept into the plaint by sheer inadvertence is responsible for the mistake or error in the decree.
12. In exercising of our powers of appeal in relation to the decree under appeal, it is perfectly open to us to correct the necessary mistakes. We therefore direct corrections be made in the plaint schedule and also in the decree in relation to the acreage of S.No. 526 and S.No. 529."
13. This Court further observed as follows"
" Where mistakes have arisen by reason of inadvertence in entering the number in the plaint, the Court has ample powers under Section 152 CPC to correct such mistakes. The Court below has discussed the point at length. We do not feel called upon to enter into a detailed discussion on the subject with reference to the authorities on the point. But, we feel that the power could have been exercised only the court which passed the decree in appeal.
14. Thus, apex Court and this Court while dealing with Section 151 and 152 of the Code observed that the errors or mistakes in not giving the correct survey numbers inadvertently and when the Court comes to a conclusion that it is bona fide mistake, the Court has got ample power under Sections 151 and 152 of the Code to correct the mistakes in the judgement and decree, when the judgement and decree is not merged with the appellate order. In the present case on hand, the appeal is pending and the trial Court judgment and decree in O.S. No. 108 of 1986 is not merged and further it is only a bona fide mistake in giving the survey number in the plaint and whereas the extent and boundaries of the survey number of the suit land are not changed. In view of the circumstances and following the judgment of the apex Court, I am of the view that the trial Court should have amended the plaint and decree. Therefore, in view of the decisions referred to above of the apex Court and of this Court, I am satisfied that the trial Court has committed material irregularity in rejecting the I.A to amend the plaint and correct the preliminary decree and judgement with the correct survey number as prayed for by the petitioners herein.
15. In the circumstances, I hold that the lower court has committed material irregularity and therefore the order impugned is liable to be set aside and it is accordingly set aside and the interlocutory application filed in the Court below is allowed. Further the lower Court is directed to amend the plaint and decree as prayed for and pass preliminary decree.
16. Both the Civil Revision petitions are accordingly allowed. However, in the circumstances no order as to costs.